28. Oct 15

Real or forged will? – Ruling of the OLG Karlsruhe

According to the OLG Karlsruhe (Higher Regional Court of Karlsruhe), if the authenticity of a will is disputed, it may be necessary for witnesses to be heard in addition to an expert assessment in order to determine whether the testamentary disposition is in fact authentic.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Wills ought to be written unambiguously to ensure that the testamentary disposition is capable of being implemented pursuant to the wishes of the testator. Otherwise it is the courts that will ultimately decide whether or not they are genuine in cases of doubt, and the result might not always reflect the wishes of the testator.

The Oberlandesgericht Karlsruhe delivered a ruling on June 10, 2015 concerning the scope of the probate court’s duty of inquiry (11 Wx 33/15): If the authenticity of a will is disputed, it might be necessary to hear witnesses in addition to an expert opinion in order to procure evidence regarding the will’s authenticity or lack thereof.

In the present case, the testatrix had prepared a will in 2010, appointing her daughter as heiress to two thirds of the estate and each of her two grandchildren as heirs to one sixth respectively. In 2012, the testatrix drew up two identical handwritten wills above and beyond the first will in which she mandated that her daughter should inherit all of her assets and her grandchildren would receive various properties. The authenticity of this modified will was called into question. In particular, it was said that the testatrix’s signature differed substantially from her earlier signatures. The probate court obtained an expert opinion and ruled on this basis that the wills were genuine.

However, the OLG Karlsruhe subsequently overturned this decision, stating that the expert opinion alone was not sufficient to prove the authenticity of the will, especially since there was evidence to the contrary. The probate court should therefore have conducted further investigations, e.g. hearing witnesses, so as to gather enough evidence to determine whether the will was in fact authentic. The OLG referred the case back to the probate court for further clarification.

The case demonstrates that wills ought to be clearly written to preclude doubt as to the authenticity of the final will. Lawyers who are competent in the field of succession law can be of assistance in preparing a will, a contract of inheritance as well as with respect to other inheritance-related issues.

For more informations: https://www.grprainer.com/en/legal-advice/private-clients/law-of-succession/last-will-and-testament.html

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